QUERIES
Hi,
I am 9 weeks pregnant and giving job interviews. The latest one that I gave is in an upcoming real estate organisation ( I handle advertising and branding in real estate) and I have a very bright chance of bagging this job. I have been through a lot of posts on pregnancy on this site so have a fair idea of the law.
Now, the organisation is new (in fact i will be entrusted with the responsibility of announcing to the world about the presence of this organisation) and I am not sure if they have any HR policies regarding the employment of a pregnant woman. Would that hamper my chances of availing maternity benefits in such an organisation? Or does the law apply equally to all companies registered under the companies act?
Also, when should I reveal to them about my pregnancy? I do not want to keep them in dark but m afraid that revealing will hamper my chances of being hired.
Anonymous

4th August 2013 From India, Delhi

PARTICIPATING IN DISCUSSION:
Dinesh Divekar
Business Mentor, Consultant And Trainer
Tsivasankaran
Consultant
Cite Contribution
Community Manager
Tajsateesh
Recruitment/talent Acquisition, Career Counselling
Pon1965
Construction
Shah01ankita
Talent Acquisition / Consultant - Catalis
Couvery
Consultant
Bhushan_tripathi
Hr Consultant
+1 Other

Dear friend,
Technically speaking if you take up this employment, you will become eligible for Maternity Leave (under the provisions of Maternity Benefit Act 1961 and not under Company's Act please note). Your pregnancy is still 27 weeks away. However, if you serve for 10.5 weeks, you become eligible for the maternity leave.
Legal issue apart, my personal opinion is not to withhold this information at the time of employment. Employers expect continuity in employment at least a year or so. Who knows your employers may not want this discontinuity and they may start creating trouble for you so that you can resign on your own.
As for as intimation about pregnancy is concerned, some companies have rule that pregnant employee should intimate sooner first trimester is over. Prior intimation well in advance helps employers in organising replacement or reorganising the work.
Other seniors may give their opinion.
Dinesh V Divekar
4th August 2013 From India, Bangalore
I echo Dinesh, Please discuss about the maternity benefit once you reach the offer letter stage. If they can't comply, anyhow you wouldn't continue with them . Hence, makes sense for you to take a call before joining.
Wish you all the best!
4th August 2013 From India, Mumbai
some big companies ask for medical fitness incl. pregnancy test before hiring in order to avoid the maternity benefits in the first year itself. It is better to disclose in advance to avoid the problems later.
pon
4th August 2013 From India, Lucknow
An organization need not be a Limited Company. It applies to all establishments
Following is the condition for a woman to get Maternity Benefit
"No woman shall be entitled to Maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than [eighty days] in the twelve months immediately preceding the date of her expected delivery"
Your pregnancy is just 9 week old and you would have completed 80 days in 12 months Hence legally you will be entitled to maternity benefit.
But if you do not disclose this information at the time of interview, your services can be terminated for hiding information from the Management for obtaining employment.. It is not just three months salary any management will be worried about. But management will be concerned about your availability at crucial moments. In all fairness, you must disclose this information and let the management take a correct decision.
4th August 2013 From India, Chennai
Anonymous 
Dear Srinivasan,
Am i legally bound to disclose this? Because only then they can accuse me for hiding information. As it is this is something one cant hide. it will speak for itself in a few months time!!

4th August 2013 From India, Delhi
Hello Anonymous,
While Dinesh, (Cite Contribution), Pon & Sivasankaran have given you suggestions from the Legal as well as the Moral/Ethical perspectives, I get a feeling that you want this job even @ the cost of the Company's interest--else you last posting ['Am i legally bound to disclose this? Because only then they can accuse me for hiding information.....'].
I suggest you put yourself in their shoes & give it a thought. Every option exercised has it's own set of consequences--at least when you disclose your situation right in the beginning, you stand a chance of being considered seriously for a position when you are ready to take-up a job after delivery.
There's a Quote that COULD best fit-in your case: "Nature is NOT obligated to give the results/consequences that one expects or desires". Hope you get the point.
All the Best.
Rgds,
TS
5th August 2013 From India, Hyderabad
I am Sivasankaran and not Srinivasan.

Since the question is more about legality, I am trying to answer, with my limited knowledge on legality on this issue.

Let me reproduce a statement from an Advocate from US specialized in Labour Law.

" Labour and employment attorney Joni H. Kletter says:

“It should be noted that a woman is not “lying” if she doesn’t tell her boss right away that she’s pregnant. There is no law that you have to tell your boss you are pregnant, although if you are planning on taking leave, you may have to give your employer thirty (30) days notice based on the FMLA and/or the employer’s policy. If you are at a larger company, the employer may request that you inform Human Resources in advance prior to taking any child care leave. However, a pregnant employee does not have to tell a potential employer that she is pregnant, and a potential employer is never allowed to ask any questions, even leading ones, that relate to a potential employee’s health status, marital status or parental status.”

US is known for stringent laws on discrimination based on gender, age, race, medical condition etc. It is absolutely legal in India to ask questions like, gender, marital status, any disability, religion, etc. In the absence of law like in US, we are governed by Indian Contract Act.

Let me now reproduce Section 19 of the Indian Contract Act:

19. Voidability of agreements without free consent.- When consent to an agreement is caused by coercion, 1[ fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. A party to a contract whose consent was caused by fraud or mis- representation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true. Exception.- If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence. Explanation.- A fraud or misrepresentation which did not cause the consent to a contract of the party on whom such fraud was practised, or to whom such misrepresentation was made, does not render a contract voidable. Illustrations

(a) A, intending to deceive B, falsely represents that five hundred maunds of indigo are made annually at A' s factory, and thereby induces B to buy the factory. The contract is voidable at the option of B.

(b) A, by a misrepresentation, leads B erroneously to believe that, five hundred maunds of indigo are made annually at A' s factory. B examines the accounts of the factory, which show that only four hundred maunds of indigo have been made. After this B buys the factory. The contract is not voidable on account of A' s misrepresentation.

(c) A fraudulently informs B that A' s estate is free from incumbrance. B thereupon buys the estate. The estate is subject to a mortgage. B may either avoid the contract, or may insist on its being carried out and the mortgage debt redeemed.

(d) B, having discovered a vein of ore on the estate of A, adopts means to conceal, and does conceal, the existence of the ore from A. Through A' s ignorance B is enabled to buy the estate at an under- value. The contract is voidable at the option of A.



The “pregnancy threat” is a real issue for many women and though sometimes it works out fine when these women do tell their employers, the fact that the threat exists is a problem. It is a much bigger problem than trying to cover up a 6-month pregnant belly. Just ask Jessica Simpson.
5th August 2013 From India, Chennai
Hello,

Going by the indian MNC or XYZ or ABC scenario these will be the possibilities.

1) The company before joining will have a medical test conducted by their own doc, who will find out that you are pregnant and will mention this in their report on which the company will not accept you.

2) If the company does not conduct any medical tests and tomorrow the company comes to know that you are pregnant and if they dont want to provide you benefits (it is common sense no company will hit axe on their own leg and recruit employees only to give benefits and not take commitment for 1yr or long periods) they will very intelligently torture you by making work late, on holidays and ultimately you yourself will resign the company. Or if you further argue with the company who will have a legal team + managers would be there to make your life hell, for which you cant lodge any complaint, but you will further deteriorate your health and mind, which may be harmful.

Seems you want to dig a ditch for the company and make them incur losses by making them recruit you and pay for your benefits, even if by law you are eligible for maternity benefits by those 80 something days, digging a ditch for company will make you fall in your own ditch.

There may be rarely some companies who may happily give you medical benefits within months of recruiting. If your company is one of them you are lucky , but the HR knows how hard it is to retain employees.

Can Anyone Interpret this Section of Maternity Benefit Act which speaks of twelve months working preceding the expected date of delivery.



(2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than 1[ eighty days] in the twelve months immediately preceding the date of her expected delivery: Provided that the qualifying period of 1[ eighty days] aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration. Explanation.-- For the purpose of calculating under this sub- section the days on which a woman has actually worked in the establishment, 1[ the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages] during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.


In the end to each his own.....
5th August 2013 From India, Madras
I am Sivasankaran and not Srinivasan.

Since the question is more about legality, I am trying to answer, with my limited knowledge on legality on this issue.

Let me reproduce a statement from an Advocate from US specialized in Labour Law.

" Labour and employment attorney Joni H. Kletter says:

“It should be noted that a woman is not “lying” if she doesn’t tell her boss right away that she’s pregnant. There is no law that you have to tell your boss you are pregnant, although if you are planning on taking leave, you may have to give your employer thirty (30) days notice based on the FMLA and/or the employer’s policy. If you are at a larger company, the employer may request that you inform Human Resources in advance prior to taking any child care leave. However, a pregnant employee does not have to tell a potential employer that she is pregnant, and a potential employer is never allowed to ask any questions, even leading ones, that relate to a potential employee’s health status, marital status or parental status.”

US is known for stringent laws on discrimination based on gender, age, race, medical condition etc. It is absolutely legal in India to ask questions like, gender, marital status, any disability, religion, etc. In the absence of law like in US, we are governed by Indian Contract Act.

Let me now reproduce Section 19 of the Indian Contract Act:

19. Voidability of agreements without free consent.- When consent to an agreement is caused by coercion, 1[ fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. A party to a contract whose consent was caused by fraud or mis- representation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true.

The emphasis is on Misrepresentation and that causes the contract Voidable.

Let me reproduce relevant example out of examples given in the Act.



(d) B, having discovered a vein of ore on the estate of A, adopts means to conceal, and does conceal, the existence of the ore from A. Through A' s ignorance B is enabled to buy the estate at an under- value. The contract is voidable at the option of A.

I am rephrasing this to suit your question

" a Pregnant Woman discovers a potential job in a Company, and identifies that chances of getting employed is low if she declares her pregnancy adopts means to conceal and does conceal her pregnancy from the Company. Through the Company's ignorance she has obtained the Job. This contract is voidable at the option of the Company."

Legally you need not disclose that you are pregnant. However, you are taking a risk of the Company terminating you based on the fact that the Contract is Voidable at their instance.

I am not discussing the legality of an employer's right to reject a candidate based on pregnancy in this post.

Let me accept that 'the pregnancy threat" is a real issue for many career focused women.

Sometimes it works out fine when these women do tell their employers or potential employers, the fact is the "threat exists."
5th August 2013 From India, Chennai

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